James (Migration) - [2022] AATA 4646

James (Migration) [2022] AATA 4646 (2 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mitchell Joseph James
REPRESENTATIVE:  Mr Prabhjot Singh Sandhu (MARN: 0963599)
CASE NUMBER:  2208351
HOME AFFAIRS REFERENCE(S):          BCC2020/1560044
MEMBER:Peter Papadopoulos
DATE:2 December 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 02 December 2022 at 1:06pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – further stay in Australia extending over 12 months – exceptional circumstances – impact of the COVID-19 pandemic – pandemic-related restrictions no longer apply – no other health-related reason – visa refusal on immigration record – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 137L
Migration Regulations 1994, Schedule 2, cl 600.215
CASES
An v Minister for Immigration and Citizenship [2007] FCAFC 97
Hatcher v Cohn [2004] FCA 1548
Oreb v Wilcox (2004) FCA 1520
Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 918
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 May 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (“the Act”).
The visa applicant applied for the visa on 15 May 2020. At the time the visa application was lodged, Class FA contained one visa subclass, the subclass 600 (Visitor) visa (“subclass 600 visa”) which had a number of different streams. In this case, the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.
The criteria for a subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 600.215:
600.215
(1) If subclause (2) applies—exceptional circumstances exist for the grant of the visa.
(2) This subclause applies if the grant of the visa would result in the applicant being authorised to stay in Australia as the holder of one or more of the following visas for a total period of more than 12 consecutive months:
(a) one or more visitor visas;
(b) a Subclass 417 (Working Holiday) visa;
(c) a Subclass 462 (Work and Holiday) visa;
(d) a bridging visa.
Evidence before the Department
The applicant is a 5 year old male from the United Kingdom (“UK”). Department records indicate that he first arrived in Australia on 20 February 2020 on a subclass 601 Electronic Travel Authority visa which permitted him to remain in Australia for three months after entry.
He applied for a subclass 600 visitor visa on 15 May 2020 seeking to remain in Australia until 15 November 2020. The applicant was represented in relation to their visa application by Mr Prabhjot Singh Sandhu (MARN 0963599).
In a section of the visa application form entitled “Further stay”, the applicant was provided…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading James (Migration)

Details

AGLC: James (Migration) [2022] AATA 4646
Case: [2022] AATA 4646
Decision Date: 2 December 2022

CaseChat Overview and Summary

This matter concerned a review of a decision to refuse a Visitor (Class FA) visa, Subclass 600, for an applicant who had been in Australia for over 12 consecutive months. The applicant had arrived in Australia on 20 February 2020 and had remained in the country since then, holding a subclass 601 visa and a bridging visa. The Tribunal was required to determine whether the grant of the subclass 600 visa would result in the applicant being authorised to stay in Australia for more than 12 consecutive months, and if so, whether exceptional circumstances existed to justify the grant of the visa.

The Tribunal first considered whether the applicant would be authorised to remain in Australia for more than 12 consecutive months. Department records confirmed the applicant's continuous presence in Australia since February 2020, and that both the subclass 601 visa and the bridging visa held were prescribed visas for the purposes of clause 600.215 of the Regulations. Consequently, the Tribunal found that granting the subclass 600 visa would indeed result in the applicant being authorised to stay in Australia for more than 12 consecutive months. The central legal issue then became whether "exceptional circumstances" existed for the grant of the visa.

In determining what constitutes "exceptional circumstances," the Tribunal noted that the legislation does not provide a definition. It referred to existing case law, including *An v Minister for Immigration and Citizenship* [2007] FCAFC 97, which described "exceptional" as meaning unusual or atypical. The Tribunal also drew upon comments from *Wang v Minister for Immigration and Multicultural and Indigenous Affairs* [2005] FMCA 918 and *Oreb v Wilcox* (2004) FCA 1520, which characterised "exceptional circumstances" as elastic instructions requiring something unusual or different to take a matter out of the ordinary, and that factors setting a person apart from others in a comparable situation may qualify. Despite considering the applicant's circumstances, individually and cumulatively, the Tribunal was not persuaded that exceptional circumstances existed for the grant of the visa.

Accordingly, the Tribunal affirmed the decision not to grant the applicant a Visitor (Class FA) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant was represented in relation to the review by Mr Prabhjot Singh Sandhu (MARN 0963599). CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether cl 600.215 is met, which requires the Tribunal to determine whether the grant of the visitor visa will result in the applicant being authorised to stay in Australia for more than 12 consecutive months, and if so, whether exceptional circumstances exist for the grant of the visa. Would the grant of the visa result in the applicant being authorised to stay in Australia as the holder of one or more prescribed visas for a total period of more than 12 consecutive months? Department records indicate that since he first arrived in Australia on 20 February 2020, he has not left Australia, and has therefore been in Australia for more than 12 consecutive months. Since arriving in Australia he has held a subclass 601 visa and a bridging visa. Both of these visas are prescribed in cl 600.215. The Tribunal finds that the grant of the subclass 600 visa to the applicant would result in the applicant being authorised to stay in Australia as the holder of one or more of the visas prescribed in cl 600.215 for a total period of more than 12 consecutive months. Do exceptional circumstances exist for the grant of the visa? The legislation does not define exceptional circumstances. The Tribunal is not aware of any specific relevant court authority on the meaning of “exceptional circumstances” in the context of cl.600.215. However, the meaning of exceptional circumstances has been considered in the context of other visa criteria. In An v Minister for Immigration and Citizenship [2007] FCAFC 97 the majority of the Full Federal Court (per Emmett and Lindgren JJ) held that the word “exceptional” in the context of cl. 856.213 in Part 856 of Schedule 2 to the Regulations is a simple, non-technical phrase and should be understood as meaning unusual or atypical. The meaning of “exceptional circumstances” in the context of section 137L of the Act was considered by Walters FM in Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 918. In particular, the court referred with approval to the following comments of Jacobson J in Oreb v Wilcox (2004) FCA 1520:The terms "exceptional circumstances" or "special circumstances" are gateways to the exercise of a discretion and are to be found in many statutes. They have been said to be elastic instructions and that all that is contemplated is for there to be something unusual or different to take the matter out of the ordinary (see Boscolo v Secretary, Department of Social Security[1999] FCA 106; (1999) 90 FCR 531 at 535-6). Walters FM also referred to the following statements of Kiefel J in Hatcher v Cohn [2004] FCA 1548:Exceptional circumstances, in general terms, are those circumstances, which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances……The words “exceptional circumstances” may apply to a variety of circumstances, and no definition which limits their application, should be adopted, unless the limitation appears from the relevant statutory provision.

Decision

Reasons for decision

The legislation is clear, as stated at cl.600.215 of the Regulations, that the visa can be granted if exceptional circumstances exist for the grant of the visa. However, taking into account all of the above sets of circumstances, individually and cumulatively as they apply to the applicant, the Tribunal is not persuaded that exceptional circumstances exist for the grant of the visa. DECISION The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.Peter PapadopoulosMember

Ratio Decidendi

Legal Principle Established

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